CIVIL COURT OF THE CITY OF NEW YORKCOUNTY OF KINGS_____________________________________________________

BOARD OF MANAGERS OCEANA CONDOMINIUM NO. TWO,

Plaintiff,

-against-

DENIS KARDYUKOV, ELENA SVENSON and MICHAEL KRICHEVSKY,

Defendants. -against-

COOPER SQUARE REALTY, INC., LANA KAPLUN and FARID BADALOV, Third-Party Defendants._____________________________________________________

INDEX NO. 105863

VERIFIED ANSWER, COUNTER CLAIM, CROSS-CLAIM WITH THIRD-PARTY COMPLAINT

JURY TRIAL DEMANDED

C O U N S E L O R S :

The defendant, MICHAEL KRICHEVSKY, appearing Pro Se, reserves the right to

amend his pleadings as more information and/or situation may demand in the future; and for his

Verified Answer to the OSC and Verified Petition, respectfully alleges, upon information and

belief:

1. Denies each and every allegation contained in paragraph numbered 1, 2, 4, 6, 7, 8, 9, 10,

11, 12, 13, and 14 of the VERIFIED PETITION.

2. Lacks information or knowledge sufficient to form a belief as to the truth or falsity of the

allegations contained in paragraph numbered 5 of the Verified Petition.

3. Admits each and every allegation contained in paragraph numbered 3 of the Verified

Petition, except that unit owners are not occupying the unit.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

4. The Court lacks personal jurisdiction over the defendant due to plaintiffs' failure to serve

process in accordance with Section 311 of the Civil Practice Law and Rules.

5. That this petition is not properly verified as corporate officer/employee of OCEANA

BOARD OF MANAGERS LANA KAPLUN can not have firsthand knowledge of the

facts, which only COOPER SQUARE REALTY may know.

6. Therefore, this petition must be dismissed.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

7. The petition in its entirety, and each cause of action contained therein, fails to state a

cause of action.

8. That the petitioner never served the rent collection notices on KRICHEVSKY, lacks

condition precedent and this petition must be dismissed.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

9. That there is another prior action pending between plaintiff and defendants

KRICHEVSKY, SVENSON, EDELSTEIN and KOTLYAR in the Civil Court of the

City of New York, County of Kings, arising out of the same cause of action as alleged in

the present petition bearing index No 99601/09 (Exhibit A).

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

10. That the plaintiff asserting the causes of action has no legal capacity to sue.

11. That the plaintiff is not the damaged party.

12. That the plaintiff is not the real party in interest.

13. That if there was any contract authorizing plaintiff to sue – it is breached by plaintiff,

null and void for fraud.

14. That if plaintiff’s corporate officer LANA KAPLUN had any mandate authorizing her to

act on behalf of unit owners – now it is null and void for her corrupt and treasonous

activities against them.

15. That if defendant did sign any contract with Plaintiff or other party authorizing this party

to sue KRICHEVSKY – it was uncontainable.

16. That if KRICHEVSKY did sign any document and/or entered into any implied contract,

it was based on fraud and misrepresentation.

17. Accordingly, KRICHEVSKY is putting them on notice that he rescinds it.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

18. That the plaintiff is barred from retrying the issues rose in the Verified Petition because

of res judicata, direct estoppel and/or collateral estoppel, as well as acquiescence.

19. That said action was dismissed against defendant Krichevsky on 12.05.09. (Exhibit B).

20. That plaintiff’ and COOPER’ own actions prevented KRICHEVSKY from renting out

his unit and paying common charges out of rent proceeds.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

21. That the damages alleged to have been sustained by the plaintiff were sustained while the

plaintiff and third-party defendants were involved in an activity which was entered into

with full knowledge and consent of the potential hazard thereof, which was explained to

them by KRICHEVSKY; and the inherent risk incident to such activity, and that such

risk and any damages flowing therefrom were expected and assumed upon entering into

and continuing such activity.

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE

22. That the plaintiff has failed to use available means to mitigate damages, and therefore

waived its rights.

23. That the plaintiff acted in bad faith, has unclean hands and is barred from any equitable

relief.

24. That on or about January 15, 2010 Defendant offered plaintiff and third-party defendants

repayment plan after third-party defendant investigates and approves defendant’s

proposed new tenant and lease in the amount of $2900.00 per month, but they refused to

consider and negotiate.

25. That on or about January 15, 2010, KRICHEVSKY received a call from prospective

tenant, VLADIMIR, who told KRICHEVSKY that COOPER refuses to accept for

consideration his application for tenancy. Details of this conversation will be provided in

third-party complaint.

26. That on or about January 15, 2010 KRICHEVSKY called KAPLUN, as his

representative and agent, and complained that COOPER, by third-party defendant

FARID BADALOV refuses to accept and consider KRICHEVSKY’ tenant application,

that he will not be able to pay for common charges, that this will adversely affect other

unit owners, and that loss of the unit to foreclosure becomes imminent, which will

adversely affect real estate values of the Oceana Complex as a whole.

27. KAPLUN told KRICHEVSKY that they have the right to refuse, that they are acting in

accordance with by-laws of the HOA and refused to intervene.

28. Upon information and believe said tenant was approved by COOPER, stirred into

another lease with other unit owner and currently lives in the same building.

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE

29. That the plaintiff has failed to join the necessary parties, COOPER, KAPLUN AND

BADALOV, and this Court should not proceed in the absence of said parties.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE

30. That this action is time barred due to plaintiff' laches.

31. That after plaintiff’ prior action against KRICHEVSKY was dismissed for SEWER

SERVICE, they waited another year to continue legal action hoping that my condo unit

will be foreclosed and corporate defendants will profit from it personally.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE

32. The alleged provision of the agreement between the parties providing for attorney's fees

is unconscionable, a forfeiture or penalty, and as such, is contrary to law and public

policy.

AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE

33. That if the plaintiff sustained any damages as alleged, such damages were caused, in

whole or part, by plaintiff' own fault and negligence.

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE

34. That the contract for services between Defendant and Plaintiff is breached by Plaintiff

and third-party defendants, void, unconscionable, and unenforceable.

AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE

35. That some services and/or maintenance promised to KRICHEVSKY were not provided

by plaintiff and defendants, and those that were provided are unnecessary, wasteful,

and/or too expensive and KRICHEVSKY did not consent.

36. That condominium fees and charges called “due” by plaintiff are not actually due until

the plaintiff performs.

AS AND FOR A FOURTEENTH AFFIRMATIVE

DEFENSE

37. KRICHEVSKY invokes his constitutional right to protect his property.

38. Due to the fact that said condominium unit was unoccupied after EDELSTEIN’ eviction

and in foreclosure intentionally caused by Plaintiff and others, KRICHEVSKY occupied

it by moving in DENIS KARDYUKOV as his guest to live rent free and guard against

anybody’ break-ins including trespass by plaintiff and SVENSON.

39. That this situation was discussed about a year ago with plaintiff’ attorney ANNA

GUILIANO, ESQ. during one of the bank’ foreclosure settlement conferences in Kings

County Supreme Court.

40. That as a first step toward settlement discussions in good faith, plaintiff and/or third-

party defendants supposed to produce without litigation with KRICHEVSKY a copy of

bylaws and minutes of condominium.41. That when KRICHEVSKY came to the management office they asked for $280 payment

to get said documents and negotiations ended as KRICHEVSKY did not consent.

AS AND FOR A FIRST COUNTERCLAIM AND THIRD PARTY

CLAIM – AGENT BREACHING FIDUCIARY DUTY TO PRINCIPAL.

AS AGAINST PLAINTIFF (OCEANA) AND THIRD-PARTY

DEFENDANT COOPER SQUARE REALTY (COOPER).

42. All allegations above incorporated by this reference as if fully restated herein.

43. That there was/is the agent-principal relationship between plaintiff and KRICHEVSKY.

44. That there was/is the agent-principal relationship between COOPER and

KRICHEVSKY.

45. That there is/are a written and implied contracts spelling out all the duties owed to

KRICHEVSKY, as principal.

46. That the only reason for the existence of these corporations is to benefit, serve and

protect interests and safety of the owners of condominium units.

47. That earnings of these corporations derived from individual payments of unit owners.

48. That those duties were breached on or about October 2008 by failure and/or refusal to act

when KRICHEVSKY informed plaintiff and COOPER about controversy between

KRICHEVSKY, SVENSON and EDELSTEIN.

49. That on or about October of 2008, EDELSTEIN entered in FRAUDULENT lease with

SVENSON without COOPER’ AND KRICHEVSY’ knowledge and consent, and that

SVENSON does not intend to pay the monthly common charges.

50. KRICHEVSKY specifically demanded that plaintiff starts legal action against

SVENSON and EDELSTEIN.

51. KAPLUN promised KRICHEVSKY “to take care of this.”

52. As a result of this breach of duty, KRICHEVSKY had to hire an attorney, pay him

personally to protect his interests and lose about $5000.00 in attorney fees.

53. That on or about June of 2009, KRICHEVSKY demanded that KAPLUN starts any

action against SVENSON and EDELSTEIN.

54. That on or about August 2009, KRICHEVSKY demanded that KAPLUN starts legal

action against SVENSON and EDELSTEIN.

55. That after plaintiff or COOPER in October-November of 2009 cancelled EDELSTEIN’

membership and/or access to health club and gym, EDELSTEIN vacated

KRICHEVSKY’ condo unit.

56. As result of plaintiff’ failure and delay to act anyhow, EDELSTEIN was not evicted until

about October-November of 2009.

57. As result of the forgoing KRICHEVSKY did not collect any rent from his unit, which

made him unable to pay his mortgage as well.

58. As direct result of the foregoing KRICHEVSKY was damaged in the sum of about

$35,000.

59. As direct result of the forgoing KRICHEVSKY’ condo unit entered into foreclosure by

mortgage company.

60. As the direct result of plaintiff’ and third-party defendants’ refusal to approve

KRICHEVSKY’ tenant, he was unable to collect $2900.00 per month in rent and is

damaged in an additional sum of $40,000.00.

AS AND FOR A SECOND COUNTERCLAIM AND THIRD-PARTY

CLAIM AGAINST KAPLUN AND BADALOV – FIDUCIARY

BREACHING DUTY61. All allegations above incorporated by this reference as if fully restated herein.

62. That there was fiduciary relationship between KRICHEVSKY and KAPLUN together

with BADALOV.

63. That the above mentioned fiduciaries entered in activities against KRICHEVSKY’

interest.

64. That these fiduciaries owed KRICHEVSKY the duty of loyalty.

65. That their duties entered into conflict of personal interests and self-dealing.

66. That after KRICHEVSKY explained them his situation and requested assistance, they

became argumentative and hostile.

67. After KRICHEVSKY told BADALOV that he leaves KRICHEVSKY no choice, but to

sue him personally for damages, he laughed and told KRICHEVSKY “to do what he has

to do.”

68. That KRICHEVSKY was damaged in the total sum of $80,000.00.

AS AND FOR A THIRD COUNTERCLAIM AND THIRD PARTY

CLAIM – BREACH OF CONTRACT

69. All allegations above incorporated by this reference as if fully restated herein.

70. That there was service contract between KRICHEVSKY, OCEANA and COOPER.

71. That said contract was breached by their failure to perform.

72. That due to the above KRICHEVSKY was damaged.

AS AND FOR A FOURTH COUNTERCLAIM AND THIRD PARTY

CLAIM - ACCOUNTING

73. All allegations above incorporated by this reference as if fully restated herein.

74. There was relationship of mutual and confidential nature between KRICHEVSKY,

OCEANA AND COOPER.

75. That KRICHEVSKY entrusted money and property to them imposing fiduciary duty.

76. That defendant lacks adequate remedy at law.

77. That some amount of money, paid by KRICHEVSKY to them, misappropriated or

stolen, and defendant demands accounting.

AS AND FOR A FIFTH COUNTERCLAIM AND THIRD PARTY

CLAIM – CONTRACT PERFORMANCE INTERFERED WITH BY

OUTSIDER

78. All allegations above incorporated by this reference as if fully restated herein.

79. KRICHEVSKY AND VLADIMIR (tenant) signed a lease agreement.

80. KRICHEVSKY received from VLADIMIR two checks each in the amount of $2900.00.

81. One check was for first month rent, the other was for security deposit.

82. Due to intentional interference by BADALOV and KAPLUN with the performance of

this contract, COOPER and OCEANA breached it.

83. There was no legal or social justification for said act.

84. As result, COOPER and OCEANA damaged KRICHEVSKY.

AS AND FOR A SIXTH COUNTERCLAIM AND THIRD PARTY

CLAIM – CORPORATE OFFICER PARTICIPATING IN TORT.

85. All allegations above incorporated by this reference as if fully restated herein

86. As corporations, COOPER AND OCEANA are liable for the actions of their officers.

87. BADALOV AND KAPLUN committed above mentioned torts while performing their

acts within the scope of their authority as officers.

88. Therefore, COOPER AND OCEANA are liable to KRICHEVSKY for his damages.

AS AND FOR A SEVENTH COUNTERCLAIM AND THIRD PARTY

CLAIM – MALICIOUS PROSECUTION.

89. All allegations above incorporated by this reference as if fully restated herein.

90. Petitioner and defendants aware that their prior action against KRICHEVSKY resulted in

dismissal for SEWER SERVICE.

91. The order dismissing that action was not appealed.

92. OCEANA did not continue that action by serving KRICHEVSKY with legal process.

93. In that action, OCEANA’ lawyer did not ask for default judgment against codefendant

SVENSON who did not appear in that action, although she caused all controversy.

94. During commencement of that action plaintiff and defendants continuously interfered

with KRICHEVSKY’ property and business rights.

95. Now, Plaintiff maliciously started instant action lacking probable cause against

KRICHEVSKY.

96. To punish wrongdoers defendant request that punitive damages be awarded.

AS AND FOR AN EIGHTH COUNTERCLAIM AND THIRD-PARTY

CLAIM – CONCERT OF ACTION

97. All allegations above incorporated by this reference as if fully restated herein.

98. Each third-party defendant and plaintiff acted in concert against KRICHEVSKY.

99. Every one of them committed tortuous act against defendant.

100. All of them individually acted in accordance with the plan to harm

KRICHEVSKY.

101. Accordingly, KRICHEVSKY is asking the court to find them jointly and

severally liable to KRICHEVSKY.

AS AND FOR A FIRST THIRD-PARTY CLAIM AGAINST ONLY

BADALOV-SLANDER

102. All allegations above incorporated by this reference as if fully restated herein.

103. That on or about January 15, 2010 in COOPER’ management office, BADALOV told

VLADIMIR:

104. “Tell your landlord KRICHEVSKY, that until he pays us $7,000.00 that he owns us I

will not accept you tenancy.”

105. BADALOV knew or should have known that this was unethical even if it was true.

106. BADALOV knew it was not true because prior action against me was dismissed on

December 5, 2009.

107. Said publication to VLADIMIR was malicious.

108. As result of the above, VLADIMIR terminated his relationship with KRICHEVSKY and

he was damaged.

AS AND FOR A SECOND THIRD-PARTY CLAIM AGAINST ONLY

BADALOV - EXTORTION

109. All allegations above incorporated by this reference as if fully restated herein.

110. That after KRICHEVSKY came to BADALOV’ office and tried to convince him that he

is wrong in not allowing VLADIMIR’ tenancy.

111. That there is no business reason or obligation for him to interfere, and that he should not

– he told KRICHEVSKY that he is making decisions here.

112. His posture and body language implied that he is expecting a bribe.

113. That all of the above mentioned BADALOV’ behavior constitutes extortion.

114. Such conduct is going against public policy and he should be removed from his position

of COOPER’ officer.

115. That KRICHEVSKY demands an award of punitive damages

AS AND FOR A FIRST CROSS CLAIM – BUSINESS PARTNER

BREACHING DUTY TO CO-PARTNER

116. All allegations above incorporated by this reference as if fully restated herein.

117. Defendant SVENSON claimed that she is co-partner of KRICHEVSKY.

118. Partners owe fiduciary duty to each other.

119. SVENSON breach her duty and is liable.

120. SVENSON retained all rent from EDELSTEIN, while KRICHEVSKY was paying

mortgage and common charges before he run out of money.

121. That SVENSON is liable to KRICHEVSKY for all his damages.

122. That since she started this controversy, she, plaintiff and third-party defendants should be

found jointly and severally liable to KRICHEVSKY.

WHEREFORE, the defendant respectfully requests judgment dismissing the petition,

granting defendant's counterclaims, granting his third-party claims, granting defendant's cross

claim, granting the costs and disbursements of this action, and for such other and further relief as

to Interest of Justice and this Court may seem just and proper.

Dated: Brooklyn, New York January 7, 2011

_______________________________________________ MICHAEL KRICHEVSKY, Pro Se, All rights reserved

BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL, P.C.Attorneys for Plaintiff337 Broadway, 6th Fl.New York, New York 10013

COOPER SQUARE REALTY, INC

6 East 43rd StreetNew York, NY 10017

BOARD OF MANAGERS OCEANA CONDOMINIUM No. TWO,40 Oceana Drive WestBrooklyn, NY 11235

LANA KAPLUN120 Oceana Drive West Apt 5FBrooklyn, NY 11235

FARID BADALOVC/O COOPER SQUARE REALTY, INC6 East 43rd StreetNew York, NY 10017

CIVIL COURT OF THE CITY OF NEW YORKCOUNTY OF KINGS_____________________________________________________

BOARD OF MANAGERS OCEANA CONDOMINIUM NO. TWO,

Plaintiffs,

-against-

DENIS KARDYUKOV, ELENA SVENSON and MICHAEL KRICHEVSKY,

Defendants,

COOPER SQUARE REALTY, INC., LANA KAPLUN AND FARID BADALOV Third-Party Defendants._____________________________________________________

INDEX NO. 105863

PRO SE'S VERIFICATION

Michael Krichevsky, Pro Se, makes the following affirmation under the penalty of perjury:

I have prepared the foregoing Answer and third-party complaint; I know the contents thereof; the same is true to my own knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters, I believe them to be true.

Dated: Brooklyn, New York January 7, 2011

____________________________________________MICHAEL KRICHEVSKY, Pro Se, All rights reserved

CIVIL COURT OF THE CITY OF NEW YORKCOUNTY OF KINGS_____________________________________________________

BOARD OF MANAGERS OCEANA CONDOMINIUM NO. TWO,

Plaintiffs,

-against-

DENIS KARDYUKOV, ELENA SVENSON and MICHAEL KRICHEVSKY,

Defendants,

COOPER SQUARE REALTY, INC., LANA KAPLUN AND FARID BADALOV Third-Party Defendants._____________________________________________________

INDEX NO. 105863

AFFIDAVIT OF SERVICE

STATE OF NEW YORKCOUNTY OF KINGS

____________________, being duly sworn, says:

I am not a party to the action; I reside at ____________________, and I am over 18 years of age.

On January 7, 2011, I served the within Verified Answer by transmitting by electronic means a true copy thereof, to the telephone number or other station or other limitation designated by the below described Attorney(s) for that purpose. Thereafter, the office of the Attorneys for Defendant received a signal, from the equipment of each attorney to whom I transmitted the papers as aforesaid, indicating that the transmission was received. Upon receipt of said signal, I deposited a true copy of the within Verified Answer, enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within New York State, addressed to the following at the last known address set forth below:

BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL, P.C.337 Broadway, 6th Fl.New York, New York 10013

MICHAEL KRICHEVSKY2502 86th St.Brooklyn, New York 11214

__________________________________________________

2

Sworn to before meon January 7, 2011

_______________________NOTARY PUBLIC

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF KINGSIndex No. 105863

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BOARD OF MANAGERS OCEANA CONDOMINIUM NO. TWO,Plaintiff,

-against-

DENIS KARDYUKOV, ELENA SVENSON and MICHAEL KRICHEVSKY,

Defendants,

-against-

COOPER SQUARE REALTY, INC., LANA KAPLUN AND FARID BADALOV

Third-Party Defendants..

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VERIFIED ANSWER AND THIRD PARTY COMPLAINT

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Michael Krichevsky 4221 Atlantic Ave

Brooklyn, New York 11224 (718) 687-2300

AGNOWLEGMENT OF IN-HAND SERVICE:In-Hand Service of the within document is hereby acknowledged on this _____ day of ____________ 2010, at _________ am/pm

_______________________________________